This material is provided only as a guide and might not be current. It doesn’t qualify as legal counsel. Always get legal advice before making any decisions.
Asylum
An applicant must fit the Immigration and Nationality Act’s definition of a refugee in order to be granted asylum (INA). The INA defines refugee as:
“Any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person habitually resided, and who is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”
Past Persecution. The analysis for a grant of asylum based on past persecution goes as follows:
Step 1 – Does the harm Constitute Persecution?
Step 2 – Is the Harm Related to a Protected Ground? (Nexus)
The five Protected Grounds
1. Nationality
2. Race
3. Religion
4. Political Opinion
5. Particular Social Group (PSG)
Step 3 – Is the Harm Related to a Protected Ground? (Nexus)
In this step, the analysis is to see whether the harm suffered by the individual was actually on account of a protected ground – and was at least one central reason for the harm
Step 4 – Is there State Action?
To be eligible for asylum an applicant must fear:
– The alien’s Country’s government, police officials aciting in offical capacity, members of the military or elected offcials
OR
– A private person or group that the government is unable or unwilling to control.
Rebuttable presumption of future persecution. If all four steps are established then the individual has established past persecution, which triggers a rebuttable presumption of future persecution (Well-Founded Fear). Accordingly, the government will have a chance to rebut the Well-Founded Fear of persecution if:
1. There is a fundamental Change in Circumstances
2. Safe and Reasonable relocation is possible
Credibility, Corroboration and Discretion must also be established.
Well Founded Fear of Persecution
An applicant that has not established past persecution or has an independent well founded fear of future persecution can still be granted Asylum if they show that:
1. There is a Reasonable Possibility of future persecution (This can be as low as 10% chance, and can be either via a pattern or practice, or because of individual targeting; and
2. The fear must also be objectively reasonable and subjectively genuine.
3. Internal relocation analysis
– if the persecutor is the government or sponsored by the government, there is a presumption that relocation is unreasonable;
– if the persecutor is not the government then Internal relocation is presumed to be reasonable.
Humanitarian Asylum
Is a relief that is available even though past persecution was established in a case but the government rebutted well-founded fear. It may be granted if an applicant shows:
1. Compelling Reasons arising out of the severity of the past persecution
OR
2. There is a reasonable possibility of other serious harm.
Exceptions and Bars to Asylum
- Must Apply for Asylum within 1 year of arrival into the United States. In order to apply for Asylum one must affirmatively or defensively file within 1 year of entry into the United States. If applying after the 1 year deadline, an exception may apply, and if not the individual can apply for Withholding of Removal or Convention Against Torture.
Sources of Asylum Law
8 USC 1158: Asylum (U.S. Code)
Code of Federal Regulations – 8 C.F.R.
Immigration and Nationality Act
Supreme Court Cases
Board of Immigration Appeals (BIA)
Withholding of Removal
In order to qualify for Withholding of Removal one’s life or freedom would need to be threatened to their country on account of race, religion, nationality, membership in a particular social group, or political opinion. The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration
Convention Against Torture
Convention Against Torture (CAT) relief is available to someone who is afraid of persecution is relief under the Convention Against Torture (CAT). Similar to withholding of removal, only Immigration Judges (IJs) have the authority to award it; Asylum Officers cannot. It is the applicant’s responsibility to prove that returning to their country of origin would almost certainly result in torture. 1 Torture “must be an extreme form of cruel and inhuman punishment” that “must cause severe pain or suffering,” according to the Board of Immigration Appeals (BIA). Under CAT, there are no restrictions on qualifying for relief.